Could the International Criminal Court Be Africanised?


AfricaRelations between the African governments and the International Criminal Court (ICC) could not be worse than the current state of affairs. Now, at government and also to some extent at public level, the ICC is perceived to have a natural bias against Africa.

Some African leaders are also thought to be fearful of the ICC. The same can be said about the relationship between the African Union (AU) and the ICC. The AU barred the ICC from opening a liaison office to the AU in Addis Abeba.

Recently, the AU commenced a global campaign against the entire ICC following a request from the East African region. Indicative of its precarious relationship with the ICC, the AU has called an extraordinary summit featuring the ICC as the sole agenda item for discussion.

Clearly, the AU’s displeasure about the ICC’s operations in Africa is nothing new. Since the indictment of the Sudanese President in 2006, the AU has expressed its grave concerns about the ICC and subsequently decided not to cooperate with the ICC on specific cases, namely the cases brought against Omar Al-Bashir, and the newly elected President of Kenya, Uhuru Kenyata. The AU has also forwarded repeated pleas and requests to the United Nations General Assembly, and to the United Nations Security Council for deferral of these specific cases.

I would argue that the ICC is ‘good’ for Africa, its former Chief Prosecutor ‘bad’ for the continent, and African leaders of governments and rebel groups implicated in gross human rights violations are indeed ‘ugly’. There are several reasons for this characterisation of the current relationship between the ICC and Africa.

At public level, and to some degree in the academic arena, any criticism of the ICC and its Chief Prosecutor or divergent opinion regarding the ICC is considered as being ‘ against-ICC’, ‘pro- Al-Bashir of Sudan’, ‘supporting impunity’ and so on. In contrast, many African leaders, politicians and academics alike have criticised the ICC as being ‘pro-dominant powers’, a ‘neo-colonial court’ and so on.

At face value, these criticisms seem plausible. Closer investigation, however, reveals that these criticisms are misplaced, biased, and often incorrect.

More importantly, as short-sighted as they are, such incorrect, shamefully one-sided and deliberate distortions have led to the current viciously critical and shaky relationship between the AU and the ICC. As usual, the truth does not reveal itself in stark shades of black or white. As with all-important issues, it is more likely to appear somewhere in the middle; in grey.

It will be recalled that the case against President Al-Bashir of Sudan (and three other indicted officials) became a rallying point for the AU and the Intergovernmental Authority for Development (IGAD). What we have in Kenya is another Bashir-like case, where President Kenyatta and some of his officials have been indicted.

The new posture of President Kenyatta’s government is more Pan-Africanist and Pan-IGAD and thus may gain even more support. Nevertheless, with the exception of Kenya, which has already decided to withdraw from ICC, a few countries such as Uganda and Djibouti do little more than verbally declare their intention to withdraw. Nigeria, Algeria, South Africa, and Egypt are often attempt to maintain their hold on the middle ground.

Before the indictments against Kenyans, the Nairobi government was a very vocal supporter of the ICC. Now, Kenya has become the first country to officially withdraw from the Rome Statute. While Kenya is once again vigorously engaged with the ICC, on this occasion it is with determination to weaken the ICC’s position in Africa.

Possibly the most far reaching consequential impact on the ICC’s future in Africa will be that countries like Algeria, Angola, Cameroon, Egypt, Eritrea, Guinea Bissau, Mozambique, Sao Tome and Principe, the Republic of Sudan, and Zimbabwe, states that have signed but not ratified the Rome Statute, may not ratify it or may even decide to “un-sign” the Statute. This would place these African countries in the same category as the USA and Israel, who also signed but did not ratify the treaty.

Moreover, countries like Equatorial Guinea, Ethiopia, Libya, Mauritania, Rwanda, Somalia, South Sudan and Togo are likely to consolidate their determination also not to sign the Rome Statute. Hence the most important message to the ICC and the international community will be its continuously converging and strong opposition regarding the ICC’s handling of Africa and making the future of the ICC in Africa that much more precarious.

The other far-reaching negative implication is the continued politicisation of the ICC’s judicial role. Primarily due to the prosecutorial policies of the former Prosecutor, Luis Moreno Ocampo, the victory of Kenyatta and his deputy William Rutto in the most recent Kenyan election was construed as reflecting the Kenyan people’s indictment on the ICC and its activist Prosecutor.

For many, the Kenyan presidential election was a contest between Kenyatta and Ocampo, with Kenyan voters serving as the jurors in a case that placed the ICC judges in the dock. In the eyes of many Africans, the ICC lost its case.

To be certain, an en masse withdrawal from the ICC will hurt Africans more than the ICC. With the highest incidence of systemic and human rights violations globally, Africa, more than any other continent, needs the ICC.

As the largest bloc to ratify the ICC Rome Statute, Africa showed its staunch support for the ICC. Indeed, many Africans genuinely believe that they want an end to genocide, war crimes and crimes against humanity.

The ICC can help in deterring political forces from committing these terrible crimes. That is the reason why one-third (34) of the 122 states parties to the Rome Statute are member states of the AU.

The ICC also needs Africa. Former President of the ICC, Philippe Kirsch, stated in a meeting with the AU in 2006: “As far as I am concerned the ICC would not exist without the support of the African Members”.

Africans, therefore, believe that the ICC is good for Africa. The current rough relations emanate from the activist prosecutorial policy promoted by the former ICC prosecutor and the referral and deferral powers of the United Nations Security Council.

For such reasons, the AU should continue to pressure the UNSC and the ICC to address Africa’s major concerns. The AU, through its member states, which are also states parties to the ICC, should make use of its regional bloc advantage to ensure that its repeated calls for reform are heeded.

In doing this, developing a strict African mechanism for ensuring accountability of all state officials and leaders, particularly heads of governments will be important. Efforts to change the prosecutorial policy by persuading the assembly of states parties of the ICC should also be provided with attention. Not least, ensuring that the UNSC’s referral and deferral powers are withdrawn and conferred either to the Assembly of States Parties and the United Nations General Assembly shall be given attention.

Mehari Taddele He Is an International Consultant On African Union Affairs and a Fellow At the North Atlantic Treaty Organisation’s (nato) Defence College.

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